The Complainant is EWEA - European Wind Energy Association (“EWEA”) of Brussels, Belgium, represented by Gevers Legal NV, Belgium.
The Respondent is VM Solutions of San Francisco, California, United States of America, internally represented. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2013. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name and the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 26, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2013. The Response was filed with the Center on October 14, 2013.
The Center emailed the Respondent on October 17, 2013, requesting that the Respondent properly identify itself. V. Moshlevets (who appears to be the administrator of the website at the Disputed Domain Name) replied on October 22, 2013 stating “VM Solutions Inc. is a new owner of ” and that “[t]here is no relationship between us and the previous owner”.
On October 25, 2013, the Complainant emailed the Center, providing information regarding V. Moshlevets, and advising that the Disputed Domain Name was being advertised for sale. The Center replied to the Complainant on October 25, 2013, advising that all communications received would be forwarded to the Panel and that the Panel would determine what steps to take in respect of the material.
The Center appointed John Swinson as the sole panelist in this matter on November 1, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is EWEA, which stands for European Wind Energy Association. The Complainant is “the voice of the wind industry”. It promotes wind power in Europe and worldwide. The Complainant has 700 members from almost 60 countries.
The Complainant holds the following trade mark registrations and applications:
- EWEA WIND IS POWER word and logo mark (Community Registration No. 3218179, filed June 13, 2003);
- EWEA WIND IS POWER word and logo mark (Community Registration No. 11772555, filed April 26, 2013); and
- EWEA word mark (Community Application No. 11987658, filed July 16, 2013).
The Respondent is VM Solutions of California, United States of America.
The Respondent submits that it acquired the Disputed Domain Name on August 28, 2013. However, a WhoIs search annexed to the Complaint indicates that the Respondent owned the Disputed Domain Name prior to this date (at least since July 17, 2012). Currently, the website at the Disputed Domain Name is an information page titled “How to Buy Cheap Airline Tickets”. The bottom of the page states “East-West E-commerce Agency - EWEA.COM”. Prior to this, the website was “under construction”, and before that it provided information about renewable energy. The Disputed Domain Name was originally registered on August 27, 2007. 5. Parties’ Contentions A. Complainant
The Complainant makes the following submissions: Identical or Confusingly Similar
The Disputed Domain Name is identical to the Complainant’s “EWEA” trade mark application.
The Disputed Domain Name is also confusingly similar to the Complainant’s registered EWEA WIND IS POWER trademarks. “EWEA” is the dominant element of these trade marks. The accompanying slogan “wind is power” serves to support this dominant element and is less distinctive. Rights or Legitimate Interests
The Respondent has no rights in respect of the Disputed Domain Name for the following reasons:
- the Respondent does not own any trade mark rights to EWEA or any derivative thereof;
- there is no evidence that the Respondent has been commonly known by the Disputed Domain Name;
- the Respondent has no connection to or affiliation with the Complainant, and the Complainant has not consented to the Respondent’s use of the trade mark EWEA or any derivative thereof; and
- the Respondent did not register the Disputed Domain Name in connection with a bona fide offering of goods or services nor is he making a legitimate noncommercial or fair use of the Disputed Domain Name.
Prior to the Complainant sending a cease and desist letter, the website at the Disputed Domain Name was a parking page containing information about renewable energy, and inviting visitors to “contribute to EWEA”.
The Respondent was trying to generate traffic by misleadingly diverting Internet users who were searching for the Complainant’s official website. Registered and Used in Bad Faith
The Respondent registered the Disputed Domain Name to take advantage the confusion between the Disputed Domain Name and the Complainant. It is clear that the Respondent was aware of the Complainant and its trade mark rights before it registered the Disputed Domain Name. The Disputed Domain Name was first registered on August 27, 2007, after the Complainant had filed for its first EWEA WIND IS POWER trade mark application on June 13, 2003 (the trade mark was registered on July 8, 2005).
The website at the Disputed Domain Name is a parking page. The Respondent is intentionally attempting to attract for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent's website.
The Complainant sent the Respondent a cease and desist letter. The Respondent did not reply, but deactivated its website. The website now states that it is “under construction”. The Complainant contacted the Respondent again, requesting transfer, but received no response.
Supplementary Material
V. Moshlevets holds several domain names. The Disputed Domain Name has not been acquired for the business “East-West E-Commerce Agency”, which does not appear to exist.
The Disputed Domain Name is offered for sale on a number of websites for prices ranging from USD 2,200 to USD 3,200. This is inconsistent with the Respondent’s purported use of the Disputed Domain Name in relation to a travel business. B. Respondent
The Respondent makes the following submissions:
The Respondent only acquired the Disputed Domain Name on August 28, 2013. It has no relationship with the previous owner.
The Disputed Domain Name was acquired for use in relation to the Respondent’s business, “Travel portal – East-West E-commerce Agency”. A “DBA” (doing business as) application EWEA has been filed with the San Francisco City County Clerk office.
The Respondent has no intention to misuse the Disputed Domain Name for any acronym variants, including the European Wind Energy Association. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Procedural Matters
The Policy anticipates a prompt and efficient resolution of domain name disputes. As such, the Rules and the Supplemental Rules only envisage the filing of a complaint and a response, with strict time and page limits. There is no explicit provision for additional filings, except for further statements or documents provided in response to a request from a panel. Paragraph 10 of the Rules provides that the Panel is to conduct proceedings “with due expedition” and gives the Panel the power to “determine the admissibility, relevance, materiality and weight of the evidence”. In general, panels will only accept supplementary filings in “exceptional” circumstances.
In its Complaint, the Complainant submits that the Respondent registered the Disputed Domain Name on August 27, 2007. The Respondent’s emails advised that the date of acquisition was in fact August 28, 2013. The Respondent’s emails also identified East-West E-commerce Agency and V. Moshlevets as parties relevant to the Complaint.
The Complainant’s supplementary email offers information in relation to V. Moshlevets and its behavior in relation to the Disputed Domain Name. This evidence was previously unavailable and addresses the key elements of the Policy that need to be satisfied. Accordingly, the Panel accepts this material as part of the record in this proceeding. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to one of the Complainant’s trade marks.
As the EWEA trade mark is not yet registered, the Panel will compare the Disputed Domain Name with the Complainant’s registered EWEA WIND IS POWER word and logo marks.
The design elements of the EWEA WIND IS POWER trade marks may be disregarded for the purpose of assessing confusingly similarity (see paragraph 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)). Further, generic Top-Level Domains (“gTLD’s”) (i.e. the “.com” suffix) may be disregarded when comparing the similarities between a domain name and a trade mark. Therefore, the comparison is between Disputed Domain Name and the textual elements of the trade marks (i.e. “Ewea wind is power”).
The Panel finds that “EWEA” is the dominant element of the Complainant’s trademarks. The accompanying slogan “wind is power” is of secondary importance. Accordingly, as the Disputed Domain Name incorporates the dominant element of the Complainant’s trademarks, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trade mark.
The Panel notes that the Complainant likely has common law trade mark rights in the unregistered EWEA word mark, however, given its finding of confusing similarity above, a discussion of this point is unnecessary.
The first element of the Policy is satisfied. C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based upon the following:
- there is no evidence that the Respondent is commonly known by the Disputed Domain Name. The Respondent has submitted that its travel business is called East-West E-commerce Agency (with EWEA being an acronym). It stated that it had filed a DBA application with the San Francisco City County Clerk office to this effect, but provided no evidence of this filing. The Panel conducted its own searches (which it is entitled to) and found no evidence of this filing, or any other evidence indicating that the Respondent has been commonly known by the Disputed Domain Name;
- there is no evidence that the Respondent has any connection with the Complainant’s trade marks; and
- the Complainant has not given the Respondent any permission to use its trade marks.
It appears that the Respondent seeks to overcome the Complainant’s prima facie case by proving that it is making bona fide use of this Disputed Domain Name in connection with a business. In its limited submissions it states:
“We are specializing in business travel management, corporate, leisure, holidays, and last minute deals. We plan to use this name accordingly to our travel business and no otherwise.”
The website that resolves from the Disputed Domain Name is a static information page titled “How to Buy Cheap Airline Tickets”. The bottom of the page states “East-West E-commerce Agency - EWEA.COM”. The Respondent has not provided any evidence regarding the development of its alleged “East-West E-commerce Agency” business, which, as discussed above, does not appear to exist. This website does not demonstrate use or proposed use of the Disputed Domain Name in connection with a bona fide offering of goods or services.
In its supplementary email, the Complainant claims that the Respondent has listed the Disputed Domain Name for sale on several websites. The Complainant provided screenshots of these listings. It appears that the Respondent is using the website as a simple form of parking the Disputed Domain Name until it can be sold.
The Respondent has not provided sufficient evidence to rebut the Complainant’s prima facie case.
In light of the above, the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Panel finds that the Respondent registered the Disputed Domain Name primarily to sell it for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the Disputed Domain Name. In the Panel’s experience, USD 2,200 (and higher) would normally exceed the Respondent’s out-of-pocket costs (being the costs of obtaining, registering, and maintaining Disputed Domain Name).
The date that the Respondent acquired the Disputed Domain Name is unclear. The Panel relies on the annexure provided by the Complainant, which indicates that the Respondent has owned the Disputed Domain Name since at least July 17, 2012 (the “Updated Date” on the WhoIs search).
The Panel finds that the following further indicate bad faith:
- it is likely that the Respondent had prior knowledge of the Complainant and its trade marks, given that as at July 30, 2012, the Respondent was using the website at the Disputed Domain Name to provide information regarding renewable energy (the Complainant provided a WayBack search evidencing this);
- the Respondent’s claim that it did not acquire the Disputed Domain Name until August 28, 2013, when the WhoIs record provided by the Complainant clearly indicates otherwise;
- after being first notified of this UDRP dispute, the use of “East-West E-commerce Agency”, capable of being shortened to “EWEA”, in an (illusory) attempt to satisfy the legitimacy requirement that the Respondent be “commonly known” by the Disputed Domain Name; and
- the Respondent’s current passive holding of the Disputed Domain Name, currently as a static information page, and in the past as a page “under construction”.
The Panel finds, taking account of all of the circumstances of the case, the Respondent has registered and is using the Disputed Domain Name in bad faith. The third element of the Policy is satisfied. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to the Complainant.
John Swinson
Sole Panelist
Date: November 14, 2013
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